United States District Court, District of Columbia
Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.
Judson Owen Littleton, U.S. Department of Justice, Washington, DC, for Defendant.
BERYL A. HOWELL, District Judge.
This action, brought pursuant to the Freedom of Information Act (" FOIA" ),
5 U.S.C. § 552 et seq., and the Privacy Act (" PA" ), 5 U.S.C. § 552a et seq., comes before the Court on the plaintiff's petition for attorney's fees. The primary question presented is whether a FOIA plaintiff has " substantially prevailed" when the plaintiff sought, but never received, any records responsive to its request, but the plaintiff's lawsuit nevertheless succeeded in causing the defendant to process a request that the agency had previously refused to process.
The plaintiffs filed this FOIA/ PA action on November 22, 2011, and filed their first Motion for Preliminary Injunction the next day, seeking records from the defendant's Terrorist Screening Database (" TSD" ) and DHS Watchlist Service (" WLS" ). See Compl., ECF No. 3; Mot. for a Prelim. Inj. (" First PI Mot." ), ECF No. 7. Pls.' Mem. of P. & A. in Supp. Pls.' Mot. for a Prelim. Inj. (" Pls.' First PI Mem." ) at 1, ECF No. 7. In their first Motion for Preliminary Injunction, the plaintiffs sought " a preliminary injunction enjoining Defendant Department of Homeland Security from refusing to process Plaintiffs' FOIA/PA Request." First PI Mot. at 1. Less than three weeks later, the plaintiffs withdrew their first motion for preliminary injunction, citing the defendant's " decision to properly process Plaintiffs' FOIA/PA request." See Pls.' Notice of Withdrawal of Mot. for a Prelim. Inj., ECF No. 11.
The plaintiffs then filed a second motion for preliminary injunction on January 23, 2012, once again seeking a " preliminary injunction enjoining Defendant Department of Homeland Security from refusing to process Plaintiffs' FOIA/PA Request ... under the Privacy Act." Mot. for a Prelim. Inj. (" Second PI Mot." ) at 1, ECF No. 15. Less than two weeks later, on February 2, 2012, the plaintiffs once again withdrew their motion, stating that the defendant's opposition had " raised new factual and legal questions," and therefore the plaintiffs " concede[d] that the complex interrelated factual and legal issues ... are better suited to a Motion for Summary Judgment." Pls.' Notice of Withdrawal of Mot. for a Prelim. Inj. at 1, ECF No. 21. The defendant filed a motion for summary judgment on March 16, 2012, see ECF No. 23, but the plaintiffs voluntarily dismissed their complaint one week later on March 23, 2012, stating that they had " concluded that the cost of litigating the multiple exquisitely nuanced overlapping legal arguments in this case significantly outweigh[ed] any benefit that could be gained from the release of responsive information maintained by Defendant." Pls.' Notice of Voluntary Dismissal at 1, ECF No. 24. The Court then dismissed this case without prejudice on March 26, 2012. See Minute Order dated Mar. 26, 2012.
Then, on October 7, 2012— over six months after this case was closed— the plaintiffs filed a motion for attorney's fees. The plaintiffs' Petition for Attorneys' Fees seeks $1,385 for time spent drafting the Complaint and associated filings; drafting the Motion for Preliminary Injunction and associated filings, and drafting the Petition for Attorneys' Fees and associated filings. See Pls.' Pet. for Att'ys' Fees (" Pls.' Pet." ) at 4, ECF No. 25; Pls.' Reply to Def.'s Opp'n to Pls.' Pet. for Att'ys' Fees (" Pls.' Reply" ) at 5 n. 3, ECF No. 27. The plaintiffs argue that they are eligible for attorney's fees under a " catalyst theory" because their lawsuit prompted the defendant to process the FOIA/PA request at issue, which the plaintiffs characterize as a " unilateral change in position" under the FOIA fee-shifting statute. Pls.' Pet. at 1-2; see also 5 U.S.C. § 552(a)(4)(E)(i) (permitting award of attorney's fees when a plaintiff has " substantially prevailed" by, inter alia, obtaining relief through " a voluntary
or unilateral change in position by the agency" ).
The defendant opposes the plaintiff's motion on two principal grounds. First, it argues that the plaintiffs' petition is untimely under the Federal Rules of Civil Procedure, which require a motion for attorney fees to be filed " no later than 14 days after the entry of judgment." See Def.'s Opp'n to Pls.' Pet. for Att'ys' Fees (" Def.'s Opp'n" ) at 1-5, ECF No. 26; see also FED.R.CIV.P. 54(d)(2)(B). Second, the defendant argues that the plaintiffs are not eligible for attorney's fees because they did not " substantially prevail." See Def.'s Opp'n at 5-7. The Court agrees with the defendant ...